"Deliberate Intent"

Does the First Amendment protect a how-to manual for hit men?

Published July 13, 1999 4:00PM (EDT)

On March 3, 1993, in Silver Spring, Md., James Perry, a contract killer from Detroit, cold-bloodedly murdered three people: a quadriplegic 8-year-old boy, the boy's nurse and the boy's mother. Perry was acting on instructions from the boy's father, Lawrence Horn, who had long been estranged from his family. Horn, a former Motown Records producer deeply in debt, hoped to inherit the lucrative settlement that his son had received in medical-malpractice litigation.

Deft police work soon brought both Perry, the hit man, and Horn, the mastermind, to justice. Perry is currently on Maryland's death row; Horn received a life sentence. But the case wasn't over. It became chillingly clear that Perry had followed a very specific plan in carrying out his assignment. For nearly all of its aspects, he had relied on "Hit Man," a mail-order book from a Colorado outfit called Paladin Press. The book's subtitle: "A Technical Manual for Independent Contractors."

In an unusual turn of events, members of both the mother's and the nurse's families sued Paladin in federal court, essentially claiming that the publisher was an accessory to murder and should be held financially liable for Perry's crime. In an equally unusual development, Rod Smolla, a First Amendment scholar and free-speech advocate then teaching at the College of William and Mary's law school in Virginia, signed on to help the plaintiffs. "Deliberate Intent" is Smolla's inside story of the litigation, which ended just a few weeks ago with a settlement that amounted to a victory for his side: Paladin -- which had conceded before the trial that it "intended and had knowledge" that its publications would be used by criminals in committing murders for hire -- agreed to pay a reported $5 million and to stop selling "Hit Man."

Depending on one's view of the First Amendment, a case like this can be seen either as the extreme instance that tests one's true commitment to free speech (comparable to the Nazis marching in Skokie) or as a real-life event that exposes absolutist notions of free speech as absurd. Artfully interweaving law-school discussions about moral values with his own process of soul searching and with the rush of courtroom developments, Smolla shows how and why he adopted the latter view. "We would not be attempting to punish Paladin Press for publishing unpopular or offensive ideas," he explains. "We would simply be attempting to hold it responsible for aiding and abetting murder by training, counseling, encouraging, and inciting hit men, with deliberate intent."

The book, however, carries with it an annoying subtext. Although Smolla knows how to tell a story and describes the intricate legal maneuvering skillfully, he seems obsessed with proving he's a man of the street, not the classroom -- that he's the type of guy who throws back a cold beer rather than sipping chardonnay. "I ain't no pointy-headed intellectual who's afraid of a fight," he says he once told a fellow lawyer. On the cover of Smolla's excellent 1988 book "Jerry Falwell v. Larry Flynt: The First Amendment on Trial" (yes, it was partly the basis for the Woody Harrelson movie), in which he took the pro-First Amendment side, he called himself Rodney A. Smolla. Now he's just Rod. I wonder why.

By Jonathan Groner

Jonathan Groner is an editor at Legal Times in Washington.

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